Commonwealth Numbered Acts Commonwealth Numbered ActsChild Support (Assessment) Act 1989
1 Paragraph 76(3)(aa)
Omit ", subject to subsection 98A(3),".
2 Paragraph 76(3)(b)
Repeal the paragraph.
3 Part 6A (heading)
Repeal the heading, substitute:
Part 6A -- Departure from administrative assessment of child support (departure determinations)
4 Division 1 of Part 6A
Repeal the Division, substitute:
The following is a simplified outline of this Part:
* The Registrar can make a determination under this Part to depart from the provisions of this Act relating to administrative assessment of child support for a child.
* A liable parent or a carer entitled to child support can apply for such a determination, or the Registrar can make a determination on his or her own initiative.
* The Registrar must not make a determination in respect of a day that is more than 18 months earlier without leave of a court under section 112.
* The grounds for deciding whether to make a determination are the same as a court uses in deciding whether to make an order under Division 4 of Part 7.
* If the Registrar is considering making a determination, the parties can make a child support agreement in relation to child support payable for the child instead of the Registrar making the determination.
* Under section 80 of the Registration and Collection Act, certain persons can object to a decision to make or refuse to make a determination under this Part.
5 Subsection 98B(1) (note)
Omit "Note", substitute "Note 1".
6 At the end of subsection 98B(1)
Add:
Note 2: The Registrar may only make a determination under this Part in respect of a day that is more than 18 months earlier than the day on which the relevant application is made with a court's leave under section 112 (see subsection 98S(3B)).
7 Subsection 98K(1) (note)
Omit "Note", substitute "Note 1".
8 At the end of subsection 98K(1)
Add:
Note 2: The Registrar may only make a determination under this Part in respect of a day that is more than 18 months earlier than the day on which the relevant parties are notified under section 98M with a court's leave under section 112 (see subsection 98S(3B)).
9 Subsection 98S(1)
Omit "Subject to section 98A, the", substitute "The".
10 At the end of subsection 98S(1)
Add:
Note: There are limitations on the Registrar making a determination that varies an annual rate of child support below the minimum annual rate of child support (see section 98SA).
11 After subsection 98S(3A)
Insert:
(3B) The Registrar may only make a determination under this Part in respect of a day in a child support period, being a day that is more than 18 months earlier than:
(a) the day on which the application for the determination is made under section 98B; or
(b) the day on which the Registrar notifies the relevant parties under subsection 98M(1);
if a court has granted leave under section 112 for the determination to be made.
(3C) If a court has granted leave under section 112, the Registrar may only make a determination under this Part in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.
12 At the end of Division 4 of Part 6A
Add:
98SA Variation not to be below minimum annual rate of child support
(1) Subject to subsection (2), the Registrar must not make a determination under this Part that varies, or that has the effect of varying, the annual rate of child support payable by a liable parent in respect of a day in a child support period under an assessment to a rate below the minimum annual rate of child support in respect of that period.
(2) The Registrar may make a determination that varies, or has the effect of varying, the annual rate of child support payable by a liable parent in respect of a day in a child support period under an assessment to a rate below the minimum annual rate of child support in respect of that period if section 66 does not apply in relation to the child support payable by the liable parent because of the operation of section 66B.
13 At the end of section 107
Add:
(6) If the court grants the declaration, the court must, as soon as practicable, consider making an order under section 143.
14 Division 3 of Part 7
Repeal the Division, substitute:
Division 3 -- Application for amendment of administrative assessment that is more than 18 months old
The following is a simplified outline of this Division:
* Normally, the Registrar cannot make a departure determination under Part 6A, and a court cannot make a departure order under Division 4 of this Part, in respect of a day in a child support period that is more than 18 months earlier.
* Under this Division, a liable parent, a carer entitled to child support or the Registrar can apply to certain courts for leave for a determination or order to be made in respect of a day in a child support period that is more than 18 months earlier.
* A court must not grant leave for such a determination or order to be made in respect of a day in a child support period that is more than 7 years earlier.
* If a court grants leave, the court can decide whether the Registrar should make such a determination or the court should make such an order.
111 Application for amendment of administrative assessment that is more than 18 months old
Parent or carer applications
(1) A liable parent, or a carer entitled to child support, (the applicant ) may apply to a court having jurisdiction under this Act for leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118;
in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(2) Subject to section 145 (Registrar may intervene in proceedings), the parties to the proceeding under subsection (1) are:
(a) the applicant; and
(b) either:
(i) the liable parent; or
(ii) the carer entitled to child support.
Registrar application
(3) The Registrar (the applicant ) may apply to a court having jurisdiction under this Act for leave for the Registrar to make a determination under section 98S in respect of a day in a child support period, being a day that is more than 18 months, and less than 7 years, earlier than the day on which the application under this section is made.
(4) The parties to the proceeding under subsection (3) are:
(a) the applicant; and
(b) the liable parent; and
(c) the carer entitled to child support.
112 Court may grant leave to amend administrative assessment that is more than 18 months old
(1) If an application is made to a court under section 111, the court may grant leave for:
(a) the Registrar to make a determination under section 98S; or
(b) the court to make an order under section 118.
(2) The court may grant leave for an order to be made under section 118 if the court is satisfied that it would be in the interest of the parties to the proceeding for the court to consider, at the same time as it hears the application under section 111, whether an order should be made under section 118. If the court does so, the applicant is taken to have made an application to the court under section 116 for such an order.
(3) Otherwise, the court may grant leave for the Registrar to make a determination under section 98S.
Matters to be considered
(4) In considering whether to grant leave under subsection (1), the court must have regard to:
(a) any responsibility, and reason, for the delay in:
(i) making an application under section 98B or 116; or
(ii) making a determination under section 98S;
as the case requires; and
(b) the hardship to the applicant (other than the Registrar) if leave is not granted; and
(c) the hardship to the other party or parties (other than the Registrar) if leave is granted.
(5) The court may have regard to any other relevant matter.
Orders granting leave to specify period
(6) An order granting leave under this section must specify the period in respect of which the Registrar may make a determination or the court may make an order.
(7) The period specified under subsection (6):
(a) must not include a day in a child support period if the day is more than 7 years earlier than the day on which the application under section 111 was made; and
(b) is not limited by the terms of that application.
No requirement to make determination or order
(8) The granting of leave under subsection (1) does not imply that:
(a) the Registrar is required to make a determination under section 98S; or
(b) the court is required to make an order under section 118.
113 Implementation of decisions
When a decision of a court under this Division is made, the Registrar must immediately take such action (if any) as is necessary to give effect to the decision.
113A Pending application not to affect assessment
Subject to section 140 (stay orders), the fact that a proceeding is pending under this Division in relation to a person does not, in the meantime, interfere with, or affect, any administrative assessment made in relation to the person, and any such assessment may be registered under the Registration and Collection Act, and amounts of child support and other amounts recovered in relation to the assessment, as if no proceeding were pending.
15 Division 4 of Part 7 (heading)
Repeal the heading, substitute:
16 Before section 114
Insert:
The following is a simplified outline of this Division:
* Certain courts can make an order under this Division to depart from the provisions of this Act relating to administrative assessment of child support for a child.
* A person can apply for such an order in certain limited circumstances. (If a person cannot apply for an order under this Division, the person might instead be able to apply for a determination by the Registrar under Part 6A.)
* A court can also make such an order without an application in some circumstances (such as after setting aside a child support agreement).
* A court must not make an order in respect of a day in a child support period that is more than 18 months earlier without leave of the court under section 112.
17 Section 115
Repeal the section.
18 Subsections 116(1), (1A) and (1B)
Repeal the subsections, substitute:
(1) A liable parent or a carer entitled to child support may, in respect of an administrative assessment of child support for a child, apply to a court having jurisdiction under this Act for an order under this Division in relation to the child in the special circumstances of the case if:
(a) all of the following apply:
(i) the Registrar has, under section 98E or 98R, refused to make a determination under Part 6A in respect of the administrative assessment;
(ii) an objection to the refusal has been lodged under section 80 of the Registration and Collection Act;
(iii) the Registrar has disallowed the objection; or
(b) both of the following apply:
(i) the liable parent or carer entitled to child support is a party to an application pending in a court having jurisdiction under this Act;
(ii) the court is satisfied that it would be in the interest of the liable parent and the carer entitled to child support for the court to consider whether an order should be made under this Division in relation to the child in the special circumstances of the case; or
(c) in the case of a liable parent--the administrative assessment of child support payable by the liable parent for the child is made under subsection 66(1).
Note 1: For the orders that a court may make under this Division see section 118.
Note 2: With a court's leave, a court may make an order under this Division in respect of a day that is more than 18 months earlier than the day on which the relevant application was made (see subsection 118(2B)). A person is taken to have applied under this section if leave is granted.
19 After subsection 118(2A)
Insert:
(2B) A court may only make an order under this Division in respect of a day in a child support period, being a day that is more than 18 months earlier than the day on which the application for the order is made under section 116, if the court has granted leave under section 112 for the order to be made.
(2C) If the court has granted leave under section 112, the court may only make an order under this Division in respect of a day in a child support period if the day is within the period specified by the court, under subsection 112(6), in the order granting the leave.
20 Subsection 123(3)
Omit "Division 4 (Orders for departure from administrative assessment in special circumstances)", substitute "Division 3 (administrative assessments more than 18 months old) or Division 4 (departure orders)".
21 After paragraph 124(2)(a)
Insert:
(aa) any determination in force under Part 6A (departure determinations) in relation to the child, the carer entitled to child support and the liable parent; and
22 Paragraph 124(2)(b)
Omit "(Orders for departure from administrative assessment in special circumstances)", substitute "(departure orders)".
23 After subsection 143(3)
Insert:
(3A) If:
(a) a person (the payer ) has paid an amount of child support to another person (the payee ); and
(b) the court has made a declaration under section 107 that the payee was not entitled to an administrative assessment of child support for the child because the payer is not the parent of the child; and
(c) the court:
(i) is considering whether to make an order under this section; or
(ii) if such an order is to be made, is determining the amount that is to be recovered and whether payment is to be made in the form of a lump sum payment or a periodic amount;
then the court must have regard to the matters set out in subsection (3B). This subsection does not limit subsection (3).
(3B) For the purposes of subsection (3A), the court must have regard to the following matters:
(a) whether the payee or the payer knew, or should reasonably have known, that the payer was not the parent of the child;
(b) whether the payee or the payer engaged in any conduct (by act or omission) that directly or indirectly resulted in the application for administrative assessment of child support for the child being accepted by the Registrar;
(c) whether there was any delay by the payer in applying under section 107 for a declaration once he or she knew, or should reasonably have known, that he or she was not the parent of the child;
(d) whether there is any other child support that is, or may become, payable to the payee for the child by the person who is the parent of the child;
(e) the relationship between the payer and the child;
(f) the financial circumstances of the payee and the payer.
Child Support (Registration and Collection) Act 1988
24 Subsection 4(1) (definition of registrable maintenance liability )
After "17" insert ", 17A".
25 After section 17
Insert:
Subject to section 19, a liability is a registrable maintenance liability if:
(a) it is a liability of a person (the payer ) to pay an amount to another person (the payee ); and
(b) it arises under a court order made under section 143 of the Assessment Act; and
(c) the court made the order in response to a declaration under section 107 of that Act that the payer was not entitled to an administrative assessment of child support for a child because the payee is not the parent of the child.
26 Paragraph 19(2)(a)
After "17", insert ", 17A".
27 Subsection 30(3)
Repeal the subsection, substitute:
(3) If a registrable maintenance liability is registered under this Act, the payee of the liability is not entitled to, and may not enforce payment of, amounts payable under the liability other than by instituting a proceeding under section 113A to recover a debt due in relation to the liability.
28 After subsection 37B(7)
Insert:
Section not to prevent payee recovery of a debt
(7A) This section does not prevent a payee of a registered maintenance liability from instituting a proceeding under section 113A during a low‑income non‑enforcement period to recover a debt due in relation to the liability.
29 Section 70
Omit "Where", substitute "(1) If".
30 At the end of section 70
Add:
(2) This section does not apply to amounts paid to the Registrar in accordance with a court order made in relation to a proceeding instituted by a payee of a registered maintenance liability under section 113A to recover a debt due in relation to the liability.
31 Paragraph 71AA(1)(a)
After "17", insert "or 17A".
32 Paragraphs 71AA(1)(b) and (c)
Repeal the paragraphs, substitute:
(b) in respect of each debt, the Commonwealth would be required, under section 76, to pay the amount paid by one of the persons to the other person; and
(c) for a debt that arose from a liability referred to in section 17--the liability provided for child support for a child of the 2 persons;
33 Paragraph 72D(1)(c)
Repeal the paragraph, substitute:
(c) the Registrar is satisfied that the person has persistently and without reasonable grounds failed to pay:
(i) child support debts arising from a registrable maintenance liability under section 17; or
(ii) a child support debt arising from a registrable maintenance liability under section 17A; and
34 Subsection 72D(2)
Repeal the subsection, substitute:
(2) For the purposes of paragraph (1)(c), the Registrar must have regard to the following matters:
(a) the capacity of the person concerned to pay the debt or debts;
(b) the number of occasions on which action has been taken to recover the debt or debts, and the outcome of the recovery action;
(c) if subparagraph (1)(c)(i) applies--the number of occasions on which the debts mentioned in that subparagraph had not been paid on or before the day on which they became due and payable;
(d) if subparagraph (1)(c)(ii) applies--the length of time for which the debt mentioned in that subparagraph has remained unpaid after the day on which it became due and payable;
(e) such other matters as the Registrar considers appropriate.
35 Paragraph 72E(a)
After "17", insert "or 17A".
36 Before Part IX
Insert:
Part VIIIB -- Other provisions relating to courts
The following is a simplified outline of this Part:
* In exercising jurisdiction under this Act, a court has broad powers.
* If a proceeding has been instituted under this Act in a court or before the SSAT or the Registrar, a court may make an order staying or otherwise affecting the operation of the Assessment Act or this Act during the proceeding.
* If a court makes an order under this Act, a copy of the order must be sent to the Registrar.
* The Registrar may intervene in any proceeding under this Act.
* There are specific provisions relating to a proceeding brought by a payee of a registered maintenance liability under section 113A.
(1) A court's powers under this Act include the power to do all or any of the following:
(a) order payment of a lump sum, whether in one amount or by instalments;
(b) order payment of a weekly, monthly, yearly or other periodic amount;
(c) order that a specified transfer or settlement of property be made;
(d) order that payment of an amount ordered to be paid be wholly or partly secured as the court specifies;
(e) order that any necessary deed or instrument be executed, and that such documents of title be produced and such other things be done, as are necessary to enable an order to be carried out effectively or to provide security for the due performance of an order;
(f) order that payment be made to a specified person or public authority or into court;
(g) make a permanent order, an order pending the disposal of proceedings, an order for a fixed period, an order until a child attains a specified age or an order until further order;
(h) make an order expressed to be retrospective to such day as the court considers appropriate;
(i) make an order:
(i) discharging an order; or
(ii) suspending the operation of an order wholly or in part and either until further order or until a fixed time or the happening of a future event; or
(iii) reviving wholly or in part the operation of an order that has been suspended; or
(iv) varying an order in any way;
(j) make an order imposing terms and conditions;
(k) make an order by consent;
(l) make any other order (whether or not of the same kind as those referred to in paragraphs (a) to (k)) that the court considers appropriate;
(m) make an order at any time.
(2) The making of an order of a kind referred to in paragraph (1)(c), or of any other order under this Act, in relation to a child does not prevent a court from making a subsequent order (whether under this Act or otherwise) in relation to the child.
(3) The applicable Rules of Court may make provision with respect to the making of orders under this Act (whether as to their form or otherwise) for the purpose of facilitating their enforcement and the collection of any child support payable under them.
(1) This section applies if a proceeding has been instituted:
(a) in a court having jurisdiction under this Act; or
(b) before the Registrar under Part VII; or
(c) before the SSAT under Part VIIA.
(2) A party to the proceeding may, subject to the Family Law Act 1975 :
(a) in the case of a proceeding instituted in a court--apply to that court for an order under this section; or
(b) otherwise--apply to a court having jurisdiction under this Act for an order under this section.
(3) Pending the hearing and final determination of the proceeding, the court may make such orders as the court considers appropriate staying or otherwise affecting the operation or implementation of the Assessment Act and this Act if the court considers that it is desirable to do so, taking into account the interests of the persons who may be affected by the outcome of the proceeding.
(4) The court may, by order, vary or revoke an order made under subsection (3).
(5) An order under subsection (3):
(a) is subject to such terms and conditions as are specified in the order; and
(b) operates for:
(i) such period as is specified in the order; or
(ii) if no period is specified--until a decision of the court, the Registrar or the SSAT determining the proceeding becomes final.
(6) For the purposes of subparagraph (5)(b)(ii), a decision of the Registrar becomes final at the end of the period within which an application could have been made to the SSAT under Part VIIA, if an application has not been made within that period.
111D Copies of orders to be forwarded to Registrar
(1) If a court makes an order under this Act, the registrar or other responsible officer of the court must, within 28 days after the day on which the order is made, send a certified or sealed copy of the order to the Child Support Registrar.
(2) The Child Support Registrar may, by written notice served on the registrar or other responsible officer of a court, vary, in relation to the court, the requirement of subsection (1) in such instances and to such extent as the Child Support Registrar considers appropriate.
111E Registrar may intervene in proceedings
(1) The Registrar may intervene in, and contest and argue any question arising in, a proceeding under this Act.
(2) If the Registrar intervenes in a proceeding under this Act, the Registrar is taken to be a party to the proceeding with all the rights, duties and liabilities of a party.
(3) This section does not limit Part IX of the Family Law Act 1975 .
111F Court order for payment in proceedings instituted by payee to recover debt
If, in relation to a proceeding instituted by the payee of a registered maintenance liability under section 113A, the court makes an order for payment of an amount by the payer of the liability, the court may specify in the order that payment be made to:
(a) the payee of the liability; or
(b) the Registrar.
111G Costs in proceedings instituted by payee to recover debt
To avoid doubt, if:
(a) a payee of a registered maintenance liability has instituted a proceeding under section 113A to recover a debt due in relation to the liability; and
(b) the Registrar is not a party to the proceeding;
the Commonwealth is not liable for costs in the proceeding.
37 Subsection 113(1)
Repeal the subsection, substitute:
Debts due by a payer may be recovered by the Registrar or the payee
(1) A debt due to the Commonwealth under this Act in relation to a registered maintenance liability:
(a) is payable to the Registrar in the manner and at the place prescribed; and
(b) may be sued for and recovered by:
(i) the Registrar suing in his or her official name; or
(ii) the payee of the liability suing in accordance with section 113A; and
(c) may be recovered in:
(i) a court having jurisdiction for the recovery of debts up to the amount of the debt; or
(ii) a court having jurisdiction under this Act.
38 Subsection 113(2)
After "taken", insert "by the Registrar".
Note: The following heading to subsection 113(2) is inserted " Registrar to keep payee informed of action taken to recover debt ".
39 After section 113
Insert:
113A Recovery of debts by payees
Payee to notify Registrar of intention to institute a proceeding to recover debt
(1) A payee of a registered maintenance liability may sue for and recover a debt due in relation to the liability if the payee notifies the Registrar in writing of his or her intention to institute a proceeding to recover the debt:
(a) at least 14 days before instituting the proceeding; or
(b) in exceptional circumstances--within such shorter period as the court allows.
Note: For provisions relating to proceedings instituted under this section, see sections 111F and 111G.
Payee to notify Registrar of orders made and payments received
(2) A payee of a registered maintenance liability who has instituted a proceeding in a court to recover a debt under subsection (1) must give notice to the Registrar, in the manner specified by the Registrar, of:
(a) any orders (including orders as to costs) made by the court in relation to the payee and the debt due in relation to the liability; and
(b) any payments received by the payee from the payer under any such order;
within 14 days of the order being made or the payment being received.
Note: Section 16A provides for the Registrar to specify the manner in which a notice may be given.
(3) A payee commits an offence if:
(a) either:
(i) the court makes an order in relation to the payee and the debt due in relation to the liability; or
(ii) the payee receives a payment from the payer under any such order; and
(b) the payee fails to notify the Registrar under subsection (2) of the order being made or the payment being received.
Penalty: 10 penalty units.
(4) Subsection (3) is an offence of strict liability.
(5) It is a defence to a prosecution for an offence against subsection (3) if the person charged proves that the person gave the notice to the Registrar as soon as reasonably practicable after becoming aware of the making of the relevant order or of the receipt of the relevant payment, as the case may be.
40 After subsection 120(1)
Insert:
(1A) A court having jurisdiction under this Act may, in a proceeding instituted in the court by a payee of a registered maintenance liability under section 113A to recover a debt due in relation to the liability, exercise all the powers of the Registrar under subsection (1).
41 Subsection 120(3)
After "subsection (1)", insert ", or by a court in accordance with subsection (1A),".
Part 2 -- Application provisions
42 Application
The amendments made by items 11, 14, 17, 18 and 19 of this Schedule apply in respect of:
(a) an application made under section 98B of the Assessment Act after the commencement of this Schedule; and
(b) a determination in respect of which parties were notified under section 98M of the Assessment Act after the commencement of this Schedule; and
(c) an application made under section 116 of the Assessment Act after this item commences, even if the application relates to a decision made before the commencement of this Schedule:
(i) to make, or refuse to make, a determination under Part 6A of that Act; or
(ii) to make an administrative assessment under subsection 66(1) of that Act.
43 Application
The amendments made by items 13 and 23 of this Schedule apply in respect of proceedings instituted after the commencement of this Schedule in respect of declarations made under section 107 of the Assessment Act after that commencement.
44 Application
The amendments made by items 24 to 26 and 31 to 35 of this Schedule apply in respect of a court order made under section 143 of the Assessment Act in response to a declaration made under section 107 of that Act, whether the order under section 143 was made before or after the commencement of this Schedule.
45 Application
The amendments made by items 27 and 37 to 41 of this Schedule apply to debts due to the Commonwealth under that Act that are outstanding on and after the commencement of this Schedule, whether the debt arose before or after the commencement of this Schedule.
46 Application of amendments in relation to Western Australian exnuptial children
If, immediately after the commencement of this Schedule, the Assessment Act and the Registration and Collection Act do not extend to Western Australia in relation to the maintenance of exnuptial children because:
(a) the Parliament of Western Australia has not referred to the Parliament of the Commonwealth the matter of the maintenance of exnuptial children or matters that include that matter; and
(b) Western Australia has not adopted those Acts as amended by this Act;
items 42 to 45 of this Schedule apply in Western Australia, after Western Australia adopts those Acts as amended by this Act, in relation to the maintenance of exnuptial children as if references in those items to the commencement of this Schedule were references to the adoption of those Acts by Western Australia as amended by this Act.